A. Admissibility of evidence of the suspect interrogation protocol prepared by the public prosecutor and the standard of judgment whether it is voluntary or not

B. Whether the evidence of the witness examination protocol is admissible in a case where the witness examination was conducted as a procedure for the preservation of evidence and the date and place of examination did not notify the suspect and his defense counsel thereof in advance, and the defense counsel thereafter raised an objection against it

A. The protocol of interrogation of the accused prepared by the public prosecutor is admissible unless there are grounds to suspect in particular that the defendant's statement recorded in the protocol is not arbitrarily made if the authenticity of the formation is acknowledged by the defendant's statement in the court room. In a case where the accused contests that the statement is not made at will, the court must determine whether the defendant's statement was made at will by free conviction in consideration of all the circumstances, including the form and contents of the protocol, the academic background, career, social status, and degree of intelligence according to specific cases.

B. B. Prior to the date of the first trial, the witness examination was conducted in the procedure for the preservation of evidence pursuant to Article 184 of the Criminal Procedure Act, and the date and place of the examination of the witness was not given an opportunity to participate in the examination of the witness because the suspect and his defense counsel did not notify in advance the suspect and his defense counsel of the date and place of the examination, and if the defense counsel raised an objection regarding the examination of evidence of the above examination protocol on the date of the first trial, the above examination protocol of witness examination shall be inadmissible, and it cannot be viewed that

A. Articles 309 and 312(b) of the Criminal Procedure Act

A. Supreme Court Decision 90Do741 delivered on June 22, 1990 (Gong1990, 1623) 90Do2425 delivered on December 21, 1990 (Gong1991, 673) 91Do1270 delivered on July 26, 1991 (Gong1991, 2281) 91Do2035 delivered on February 25, 1992 (Dong) 86Do1646 delivered on November 8, 198 (Gong198, 1549)

Defendant

Defendant

Attorney Jeong-won et al.

Seoul High Court Decision 91No2034 delivered on August 23, 1991

The defendant's appeal is dismissed.

We examine the grounds of appeal.

1. As to the ground of appeal by a private defense counsel of the defendant

The protocol of interrogation of the accused prepared by the public prosecutor is admissible unless there is a special reason to suspect that the defendant's statement in the protocol is not arbitrarily made if the authenticity of the defendant's statement in the protocol is acknowledged by the defendant's testimony in the court room. Where the defendant contests that his statement is not made at will, the court decides whether the defendant has made his own testimony or not by free questioning, taking into account the form and contents of the protocol in question, the academic background, career, social status of the defendant, intelligence, etc. (see, e.g., Supreme Court Decision 91Do1270, Jul. 26, 191; 90Do2425, Dec. 21, 190; 90Do2425, Dec. 21, 1990). According to the records, even if the defendant was compelled to make a statement under the psychological condition open by the police adviser and under the influence of the defendant's testimony in the court of first instance, the defendant consistently led to the confession of the suspect's interrogation protocol prepared by the public prosecutor as well-founded evidence.

Therefore, the judgment of the court below that held the same purport cannot be said to have erred by misunderstanding of facts or misunderstanding of legal principles as to the admission of confessions. The arguments are groundless.

2. As to the Defendant’s grounds of appeal

According to the reasoning of the judgment of the court of first instance maintained by the court below, on November 9, 190, the court below acknowledged the facts that the defendant suffered an indecent act on the right side of 10 to 14 days on the ground floor by putting a female on the ground by pushing ahead of the first instance court's evidences, and decided to commit an indecent act by causing the victim's wishes to commit an indecent act on the ground of the victim's own by reporting the victim on his own, and as soon as possible, following the female on the ground of the first instance court's reasoning, the court below held that the defendant's indecent act on the ground floor of 10 to 14 days on the ground by keeping the name of the female on the boom-gun, and that the defendant's indecent act was not committed by indecent act on the ground of violence, and that there is no evidence to acknowledge the defendant's act of indecent act on the ground of violence on the right side of 10 to 14 days on the ground, and that there is no evidence to acknowledge it on the part of the victim's 2839.

However, according to the evidence of the first instance court, among the evidence admitted by the court below, the protocol of examination of the witness for the victim who is the witness before the first trial date, among the evidence of the first instance court, was prepared by the judge in the procedure for the preservation of evidence under Article 184 of the Criminal Procedure Act. However, since the judge did not notify the suspect and his defense counsel of the date, time and location at the time of the examination of the witness, and the defense counsel did not provide an opportunity to participate in the examination of the witness, the above protocol of examination of the witness is inadmissible (23 pages of the trial record), and since the defense counsel raised an objection regarding the examination of the evidence at the first trial date, the above protocol of examination of the witness shall not be admissible, and it shall not be deemed that the witness again acquired the evidence by recognizing the authenticity of the protocol at the court later, but it is sufficient for the court below to acknowledge the criminal facts of the defendant as evidence, the above error does not affect the decision.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Sang-won (Presiding Justice)